A bill advocates say is necessary to more easily punish hateful criminals passed out of the Senate Judiciary Committee this week with support from a Northeast Kingdom legislator who’s also a defense attorney.
H.428 is an effort to change the wording of the state’s hate crime law to lower the threshold for a prosecutor to attain an enhanced sentence because bias was tied to a criminal act.
The primary intent of the House bill was to remove the word “maliciously” from current law, which now states that a person who commits a crime and is “maliciously motivated” to act because of a bias can face stiffer penalties. Advocates for H.428 say forcing a prosecutor to prove motivation by malice is too tough a challenge and criminals with bias aren’t being held accountable for hateful actions.
The House version passed over to the Senate where the Judiciary committee considered it and amended it. Sen. Joe Benning, R-Caledonia-Orange, of Lyndon, is on the committee and was part of the unanimous vote to approve the amended version on Wednesday.
Senators agreed with the House members that the word “maliciously” must go and also added a phrase that addresses the significance of the motivation. Their amendment notes, “A person who commits, causes to be committed, or attempts to commit any crime and whose conduct is motivated, in whole or in part, by the victim’s actual or perceived protected category…” The list of protected categories includes race, religion, sex, sexual orientation and gender identity.
When senators first began discussing the bill, Sen. Benning was skeptical. He is an attorney who does criminal defense work. He said he came to support committee passage because the threshold for prosecution still requires some element of biased motivation.
“Admittedly, I still have a concern … but in the end I figured it unlikely that a prosecutor would base a hate crime on a passing comment without a lot more,” Sen. Benning said in an email.
He has never defended a client accused of a hate-motivated crime. He said if the proposed bill becomes law, that could change.
“I suspect there will be an increase, but I don’t see it being a flood,” said Sen. Benning. “I’m not a prosecutor, but I imagine it will still be difficult to assemble the facts necessary to prove the crime was motivated ‘in whole or in part’ as the law requires.”
Falko Schilling, advocacy director for the ACLU of Vermont, testified last week against the proposed changes out of concerns about First Amendment infringement. He offered a change in the law that would require that the offender selected the victim in the crime based on bias.
Sen. Phil Baruth challenged the proposal, saying it would make the prosecutions even harder than they already are.
Brynn Hare, serving as legislative counsel, agreed with Sen. Baruth’s assessment of the ACLU proposal. “The new language would make it harder, more difficult to have an enhanced penalty.”
Sen. Jeanette White said she initially thought Schilling made a good point about requiring a particular targeted victim based on bias, but an example about two guys in a bar changed her mind. In the example, a bar patron gets unruly and is directed to leave by the bouncer. The patron then escalates the confrontation and fights the bouncer after he notices that the bouncer is Black.
Sen. Benning said he understands why the ACLU proposal wasn’t supported.
“My thought was that [Schilling’s] language would make the intent of the bill much narrower, and harder for a prosecutor to bring an action,” Sen. Benning said. “It is very difficult to say a hate crime shouldn’t be brought because evidence of forethought has not been produced, yet the facts of what happened make it obvious as to what was going on. I normally have great sympathy for the ACLU’s position on most things, but I saw no support at all for narrowing the intent of the bill.”
Another of the committee’s invited guests to discuss the bill, Xusana Davis, executive director of Racial Equity, testified no objection to the bill, but cautioned everyone that lengthening a jail stay for a criminal bigot is just a small part of the work that needs to be done.
As amended by Senate Judiciary, the bill now goes to the full Senate. If supported there, it will go back to the House. Provided there’s acceptance of the amendment it would go to Gov. Phil Scott.